Court Finds that Terrorist Watchlist Lacks Constitutional Safeguards

Gun owners wary of government overreach in the name of "public safety," take heed.

We all agree that laws should seek to keep firearms out of the hands of dangerous people. But the details of these laws are important. Who is considered "dangerous"? What information supports that decision? Who gets to make "dangerousness" determinations and by what standards? Who provides oversight or review of these decisions? Could such a determination apply to you? If you were unfairly and inaccurately labeled dangerous, would you have effective recourse to clear your name?

Now imagine a country in which the government maintains a secret list of what it considers dangerous people. No one outside the government is allowed to see the list or know who is on it. No one outside the government is allowed to know the information that led to a person's inclusion on the list.

Yet being on the list has very serious consequences. It means a person is being watched, and his or her activities are being documented. It can lead to a denial of freedoms, like the freedom to use ordinary modes of interstate and international travel. These denials, in turn, can hurt a person's educational, business, or personal prospects, not just freedom of movement. If they are obvious enough, they can damage the person's reputation in the community.

The person will know weird things are happening, like denials of rights and services, but he or she won't know why. In some cases, the person will be told he or she can fill out a form to have someone in the government investigate the matter. Months or maybe years later, the person will receive some sort of "determination." It will neither confirm nor deny the person is on the list. It will neither confirm nor deny that further restrictions will occur. It will simply tell the person the case has been reviewed, and perhaps, that the person can ask a court for relief.

If the person does ask a court for relief, the person still won't have access to any of the government's information about his or her case. The government will insist that this information will be provided to the court for the court's own consideration, but no one except the government will know whether the court really did get all the information. The person will get to describe his or her experience to the court, but he or she won't get to answer the specific evidence or allegations the government presents in secret to the court. He or she won't even know what accusations the government is making.

After additional months or years, the court will make a decision on the case and either determine the government followed its own secret procedures for including the person on the list or it didn't. If the court finds the procedures were not followed, it can refer the case back to the government and order the government to correct the problems. But the person himself or herself will not get to know what is supposed to be fixed or be able to evaluate whether or not the fix was made (other than noticing whether the mistreatment and deprivations continue).

The government, however, will insist that this is all for the benefit of public safety and order and that the people involved are professionals who can be trusted. It will defend these practices as fair to the individual, because even though the individual will have no idea what is happening or why it's happening, bureaucrats and judges will be looking out for the individual's best interests.

This may sound like a dystopian novel of a dark future or an account from place a like North Korea. In fact, this is a summary of facts from the case of Latif, et al. v. Eric. H. Holder, Jr., in his official capacity as Attorney General of the United States. This case examines the shadowy world of the U.S. government's Terrorist Screening Database (TSDB), otherwise known as the "Terrorist Watchlist." The plaintiffs include American citizens and permanent residents, some of them U.S. military veterans, who the government denied the opportunity to travel in commercial aircraft originating from, landing in, or traveling over U.S. airspace. They were not told why, and when they went through the "administrative appeals" process, they were not given relief or explanations. They claimed, however, that the government's actions arose from their inclusion on the "No-Fly List," a component of the TSDB.

Eventually, their cases found their way to the U.S. District Court for the District of Oregon. Last August, the court issued an opinion that concluded these deprivations intruded upon the plaintiffs' constitutionally-protected liberties of international air travel and of being free from false government stigmatization. Although the government refused to admit whether or not the plaintiffs were actually on the government's No-Fly List, it was willing to stipulate for the purpose of the court case that they could be. After the August decision, the court ordered additional proceedings to determine if the procedures the government provides to protect the rights of passengers on the No-Fly list are constitutionally permissible.

On Tuesday, in a strong rebuke to government secrecy and overreach, District Judge Anna J. Brown held the government's procedures were legally inadequate. Specifically, Judge Brown found the procedures for contesting inclusion on the No-fly list violated procedural due process and were "arbitrary and capricious," in violation of the federal Administrative Procedures Act (APA).

Regarding the due process claims, the court focused upon the extremely low (and entirely one-sided) "reasonable suspicion" threshold for the government to place someone on the No-Fly List. While this standard requires more than a hunch, it is even less than what is required to arrest someone for a crime. The court found that this could lead to erroneous inclusions on the No-Fly List and noted that even the government's own reviews had found "many errors" on the list that had persisted for years, even after they were identified.

Judge Brown also found the court procedures necessary to correct erroneous listing were ineffective, as people challenging their listings have to guess at the accusations against them and what sort of evidence they should present on their own behalf. Moreover, the challengers have no opportunity to correct errors or omissions in the record the government presents to the court. Thus, people who pose no demonstrable risk whatsoever could be snared by the list and unable to extricate themselves from it.

Regarding the APA claims, the court held the No-Fly list review process "entirely fails" Congress' instruction that passengers delayed or denied boarding as security threats be able "to appeal such a determination and correct information in the system." 

Judge Brown ordered the government to correct these deficiencies by creating a review process for the No-Fly list that includes notice of one's placement on the list and a sufficient explanation of the reasons to allow the affected person to submit evidence in response to those reasons. She also ruled the plaintiffs' evidence has to be included in the record at every stage of review.

How is this relevant to gun owners? As we have reported, anti-gunners in Congress have been engaged in a long-term effort to make inclusion on the Terrorist Watchlist a basis to deny a person his or her Second Amendment rights. Meanwhile, we have also reported on efforts to portray ordinary, law-abiding gun owners as "terrorists" or public safety threats simply because of their views on the Second Amendment. Judge Brown's opinion validates concerns we have raised about the constitutional and legal problems inherent in the government using secret and essentially unchallengeable lists as a basis to deny people their rights.

While this and other recent judicial curbs to President Obama's executive actions are welcome developments, the fight is far from over. Some gun controllers are becoming more sophisticated in their tactics. Rather than challenging law-abiding gun owners head-on, they create ominous-sounding categories of presumptively "dangerous" people who they claim shouldn't be allowed to have guns. Once the category is established, however, permissive standards of inclusion allow it to continually expand until its original justification becomes unrecognizable. We recently reported on one such attempt by the Chair of the Federal "Gun Violence Prevention Task Force." 

The Bill of Rights, and the Second Amendment itself, are expressions of the belief that ultimate authority rests with the people and that the government can only go so far in pursuing its objectives. While we all have a duty to obey the laws, the government likewise must respect and adhere to those constitutional limits to maintain the trust, goodwill, and support of the American people.